Case: 12-14842     Date Filed: 02/11/2014   Page: 1 of 12


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-14842
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 1:12-cr-20007-FAM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

FLORNOY SMITH,


                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                (February 11, 2014)

       ON REMAND FROM THE UNITED STATES SUPREME COURT

Before CARNES, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

      This appeal on remand from the Supreme Court requires us to decide

whether fleeing and eluding a law enforcement officer, Fla. Stat. § 316.1935(2), is
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categorically a violent felony under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e). We previously affirmed Flornoy Smith’s enhanced sentence on the

ground that his prior conviction in a Florida court for fleeing and eluding an officer

was a violent felony under the Act. See United States v. Smith, 518 F. App’x 774

(11th Cir. 2013). The Supreme Court granted Smith’s petition for a writ of

certiorari, vacated our judgment, and remanded for reconsideration in the light of

United States v. Descamps, --- U.S. ---, 

(2013). See Smith v.

United States, 

(2013). After reconsideration with the aid of

supplemental briefs filed by Smith and the United States, we conclude that the rule

in Descamps, which limited the use of the modified categorical approach to

determine whether a prior conviction is a violent felony, does not affect the legality

of Smith’s sentence. Fleeing and eluding an officer is categorically a violent felony

under the Act. See United States v. Petite, 

, 1301 (11th Cir. 2013).

We affirm Smith’s sentence.

                                I. BACKGROUND

      Smith, a convicted felon, pleaded guilty to knowingly possessing a firearm

and ammunition, in and affecting interstate commerce. 18 U.S.C. § 922(g)(1).

Smith had three prior felony convictions: false imprisonment, burglary of an

unoccupied dwelling, and fleeing and eluding a police officer. The district court

ruled that Smith’s prior convictions were violent felonies and sentenced him to an


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enhanced sentence of 180 months imprisonment under the Armed Career Criminal

Act. 18 U.S.C. § 924(e).

      Smith objected to the classification of his prior conviction for “willfully

flee[ing] or attempt[ing] to elude a law enforcement officer in an authorized [and

marked] law enforcement patrol vehicle . . . with [its] siren and lights activated,”

Fla. Stat. § 316.1935(2), as a violent felony. He argued that the Florida statute

prohibited not only vehicular flight but also flight on foot, which distinguished his

prior conviction from Sykes v. United States, --- U.S. ---, 

(2011), in

which the Supreme Court held that a prior conviction for vehicular flight was a

violent felony under the Armed Career Criminal Act. The United States conceded

that the Florida statute could conceivably prohibit both vehicular flight and flight

on foot, but argued that the district court could consult the record of Smith’s prior

conviction, which established that Smith fled in a vehicle. The district court

overruled Smith’s objection and classified his prior conviction for fleeing and

eluding a police officer as a violent felony “based upon the Information to which

he pled guilty,” which charged that Smith fled while operating a motor vehicle.

      We affirmed Smith’s sentence. Smith, 518 F. App’x at 776. We rejected

Smith’s argument that the United States failed to prove that he committed

vehicular flight as opposed to flight on foot, and we concluded that the district

court “correctly relied on the certified documents to determine the nature of


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Smith’s offense.” 

We also rejected Smith’s argument that our decision

in United States v. Harrison, 

(11th Cir. 2009) (concluding that

section 316.1935(2) did not qualify as a violent felony), controlled the outcome of

his appeal because we had since held that “Harrison [had] been undermined to the

point of abrogation by Sykes” when Smith’s appeal was pending. 

. In Petite we held that a “prior conviction for vehicle flight in violation of

Fla. Stat. § 316.1935(2) qualifie[d] as a violent felony under the Armed Career

Criminal Act.” 

We affirmed Smith’s sentence and held that “the

district court did not err in treating Smith’s prior conviction [under section

316.1935(2)] as a predicate offense.” Smith, 518 F. App’x at 776.

      One month after we issued our decision, the Supreme Court held in

Descamps “that sentencing courts may not apply the modified categorical approach

when the crime of which the defendant was convicted has a single, indivisible set

of 

. The Court explained that its precedents allowed a

sentencing court to consult extra-statutory documents only when a statute

contained “multiple, alternative elements” that “effectively create[d] several

different crimes,” 

“not all of which qualify as an [Armed Career

Criminal Act] predicate,” and the sentencing court had to “determine which crime

formed the basis of the defendant’s conviction,” 

“The modified

approach . . . ha[d] no role to play in [Descamps’s] case,” the Court concluded,


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because Descamps was convicted of burglary under a California statute that did not

contain alternative elements. 

That statute provided that “[e]very

person who enters [specific locations] with intent to commit grand or petit larceny

or any felony is guilty of burglary.” Cal. Penal Code § 459. Because the statute

omitted the element of breaking (that is, an unlawful entry), an element essential to

the generic federal offense of burglary, Descamps’s prior conviction did not

qualify as a violent felony and could not “serve as an [Armed Career Criminal Act]

predicate.” 

. On remand, the United States concedes

that the district court erred, under Descamps, when it applied the modified

categorical approach to determine whether Smith’s prior conviction for fleeing and

eluding a police officer was a violent felony, but the parties disagree about whether

we must vacate Smith’s sentence.

                          II. STANDARD OF REVIEW

      We review de novo whether a defendant’s prior conviction qualifies as a

violent felony under the Armed Career Criminal Act. See 

.

When we employ the categorical approach to conclude that a crime is a violent

felony under the Act, we “disregard the facts of the underlying conviction” and

review the decision of the district court “look[ing] only to the elements of [a

defendant’s] prior conviction.” See United States v. Lockley, 

, 1240




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(11th Cir. 2011). We may affirm the district court on any ground supported by the

record. United States v. Hall, 

, 1271 (11th Cir. 2013).

                                 III. DISCUSSION

      We agree with Smith and the United States that Descamps established that

the district court could not employ the modified categorical approach and consult

additional documents to determine that Smith’s prior conviction was a violent

felony, 

–82, but we nevertheless may affirm Smith’s

sentence because fleeing and eluding a law enforcement officer is categorically a

violent felony under the residual clause of the Act, 18 U.S.C. § 924(e)(2)(B)(ii). In

Petite, we held that fleeing and eluding a law enforcement officer, which we

described as “simple vehicle flight,” is a violent felony under the 

–93, 1301. Smith attempts to distinguish Petite on the ground that an offender

could violate the Florida statute by fleeing on foot. The United States conceded in

the district court that an offender could violate the statute by fleeing on foot, but

now argues that “Petite left no room for doubt that the statute criminalizes

vehicular, not pedestrian, flight.” We are not bound to accept any concessions of

the United States not supported by the record or the law of our Court, see United

Sates v. Lee, 

, 866 (11th Cir. 2009), and we conduct our own analysis

affirming Smith’s enhanced sentence. We conclude that, based on the text of the

Florida statute and other authorities, section 316.1935(2) prohibits vehicular flight,


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but, in any event, fleeing and eluding a law enforcement officer, whether on foot or

in a vehicle, is categorically a violent felony.

      The whole text of the Florida statute supports our interpretation in Petite that

section 316.1935(2) prohibits vehicular flight. See Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 167 (2012) (“The text

must be construed as a whole.”). Section 316.1935(2) is the lesser-included-offense

of aggravated vehicle flight defined in section 316.1935(3). Both subsection (2)

and subsection (3) prohibit “willfully flee[ing] or attempt[ing] to elude a law

enforcement officer in an authorized law enforcement patrol vehicle.” But

subsection (3) imposes a harsher penalty for any person who, while fleeing or

attempting to elude the officer, “[d]rives at a high speed, or in any manner which

demonstrates a wanton disregard for the safety of persons or property.” Fla. Stat.

§ 316.1935(3). A violation of subsection (3) necessarily requires “[d]riv[ing]” a

vehicle, 

interpret the lesser-included-offense of subsection (2) likewise

to require driving a vehicle. Moreover, the statute is located in Title XXIII of the

Florida Statutes, which regulates “Motor Vehicles,” and chapter 316, entitled

“State Uniform Traffic Control.” Although the location of the statute is not

dispositive, it persuades us that the statute more likely governs offenses involving

motor vehicles, such as vehicular flight, and not offenses involving pedestrian

flight. See United States v. Stone, 

, 835 (11th Cir. 1998) (“As


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interpretive aids . . . we can look to the title of the statute and the heading of the

section in which it is introduced.” (quoting Trainmen v. Baltimore & Ohio R. Co.,

, 528–29, 

, 1391–92 (1947))); see also Scalia & 

(“The title and headings are permissible indicators of meaning.”). In

addition, a punishment for a violation of section 316.1935(2) is revocation of the

offender’s driver’s license, Fla. Stat. § 316.1935(5), and “[a]ny motor vehicle”

involved in the offender’s flight “is deemed to be contraband, which may be seized

by a law enforcement agency and is subject to forfeiture.” 

These

penalties are rationally related to the crime of vehicular flight, not pedestrian flight.

      The standard criminal jury instruction adopted by the Supreme Court of

Florida for section 316.1935(2) provides, as follows, that the prosecution must

prove that the offender fled or attempted to elude an officer while operating a

motor vehicle:

      To prove the crime of Fleeing to Elude a Law Enforcement Officer,
      the State must prove the following three elements beyond a reasonable
      doubt:

             1. (Defendant) was operating a vehicle upon a street or
             highway in Florida.

             2. (Defendant) knowing [he] [she] had been directed to stop by
             a duly authorized law enforcement officer, willfully fled in a
             vehicle in an attempt to elude a law enforcement officer.

             3. The law enforcement officer was in an authorized law
             enforcement patrol vehicle with agency insignia and other


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             jurisdictional markings prominently displayed on the vehicle
             and with siren and lights activated.

In re Standard Jury Instruction in Criminal Cases—Report 2011–01, 

, 138 (Fla. 2011) (emphasis added). Under this suggested jury instruction, a

jury would not convict a defendant who flees only on foot.

      We also find no support in Florida case law for Smith’s interpretation that

the statute prohibits flight on foot. Florida case law instead suggests that, even

though an offender might initially flee in his vehicle and later escape his vehicle

and continue on foot, an offender must employ a vehicle at some point in the

commission of the offense. See e.g., Sanford v. State, 

, 409 (Fla. 4th

Dist. Ct. App. 2004) (“[T]here is no risk [based on the jury instructions] that the

jury would believe that the fleeing and eluding felony was committed solely by

Sanford’s act of leaving the car and attempting to go to his residence.”); see also

e.g., 

(distinguishing jury instructions in Anderson v. State, 

(Fla. 4th Dist. Ct. App. 2001), because the “court’s concern was that

Anderson risked being convicted of a third-degree felony fleeing and eluding

offense solely upon proof of what occurred after he stopped [his vehicle]”).

      Because section 316.1935(2) prohibits only vehicular flight, we are bound

by our decision in Petite that a prior conviction for fleeing and eluding a law

enforcement officer is a violent felony. See 

. We must rule,

as we did in Petite, that under the categorical approach “intentional vehicle flight
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from a law enforcement officer is an inherently risky offense” and “provokes a

dangerous confrontational response from that officer,” which “places property and

persons at serious risk both during and after the pursuit.” 

and eluding a law enforcement officer, whether in a

vehicle or on foot, is a violent felony under the residual clause of the Armed

Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). When we employ the

categorical approach, looking only to the fact of conviction and the statutory

definition of the prior offense, James v. United States, 

, 202, 127 S.

Ct. 1586, 1593–94 (2007), we must conclude that fleeing and eluding an officer,

whether on foot or in a vehicle, “as a categorical matter, . . . presents a serious

potential risk of physical injury to another.” 

. In Petite, we

concluded that section 316.1935(2) shared the same serious potential risks of

physical injury as those risks identified by the Supreme Court in Sykes, which

involved an Indiana statute prohibiting flight from law 

–01. An offender’s flight “invites, even demands, pursuit” and creates the

possibility that “officers [in] pursui[t] . . . may deem themselves duty bound to

escalate their response to ensure the felon is apprehended.” 

. And “the confrontation between the offender and law enforcement continues

to present substantial risks even after the pursuit has ended and the vehicles have

stopped moving” because the officer might be forced to use his firearm to subdue


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the offender. 

(citing 

). Our

reasoning in Petite applies even if the statute prohibits more than vehicular flight.

If the offender flees on foot, the officer is likely to pursue the offender in a vehicle

because the statute states that the offender must flee “a law enforcement officer in

an authorized law enforcement patrol vehicle.” Fla. Stat. 316.1935(2) (emphasis

added); see also 

(“[W]e are obliged to look beyond the

driving conduct of the offender alone.”). The officer’s vehicular pursuit—a

“confrontational response from the officer” in reaction to the “defiance of [his]

orders”—creates a risk of injury even if the offender’s flight is on foot. See Petite,

. His “[h]eadlong flight—wherever it occurs—is the consummate act

of evasion,” Illinois v. Wardlow, 

, 124, 

, 676 (2000),

which “gives the officer reason to believe that the defendant has something . . .

serious . . . to hide” and causes the officer “to escalate [his] response.” 

. The offender, in turn, “having chosen to flee, and thereby commit a

crime, . . . has all the more reason to seek to avoid capture.” 

“[S]uch an

offender is significantly more likely than others to attack, or physically to resist,

[his] apprehender, thereby producing a ‘serious potential risk of physical injury.’”

Chambers v. United States, 

, 128–29, 

, 692 (2009)

(quoting § 924(e)(2)(B)(ii)). His flight creates countless dangers for persons in the

vicinity. An offender desperate to escape might use a firearm or ensnare onlookers


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to effectuate his escape, and the officer may employ force to capture the fleeing

offender. See 

–74. The offender, whether on foot or in a

vehicle, has created risks comparable to risks posed by arson, “which . . . entails

[an] intentional release of a destructive force dangerous to others,” or those posed

by burglary, which is “dangerous because it can end in confrontation leading to

violence.” 

      The district court correctly enhanced Smith’s sentence under the Armed

Career Criminal Act. Under Sykes and Petite, a prior conviction for fleeing and

eluding a law enforcement officer, Fla. Stat. § 316.1935(2), qualifies as a violent

felony. An offender who flees or eludes a law enforcement officer in active pursuit

in a patrol vehicle categorically presents a serious potential risk of physical injury

to that officer and the public.

                                  IV. CONCLUSION

      We AFFIRM Smith’s sentence.




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